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2013 DIGILAW 436 (MAD)

Mayee @ Maya Thevar v. Solai Sethuramalingam

2013-01-21

G.RAJASURIA

body2013
JUDGMENT 1. This Civil Revision Petition has been filed to get set aside the fair and decreetal order dated 16.08.2011 passed in I.A.No.792 of 2010 in O.S.NO.279 of 2009, by the learned District Munsif Court, Palani. 2. Heard both sides. 3. Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of the disposal of this Civil Revision Petition, would run thus: The learned Counsel for the revision petitioner would succinctly and precisely put forth and set forth his arguments to the effect that an application under Section 5 of the Limitation Act was filed so as to get the delay of 262 days condoned in filing the application under Order IX Rule 13 of the Code of Civil Procedure to get the exparte decree set aside; the lower Court, without numbering both the applications, passed orders by dismissing the application filed under Section 5 of the Limitation Act and as a sequela dismissed the application filed under Order IX Rule 13 of the Code of Civil Procedure. 4. Being aggrieved by and dissatisfied with the order of the lower Court, this Civil Revision Petition has been focussed by the revision petitioner on various grounds. 5. The learned Counsel for the revision petitioner would submit that the delay was only 262 days which resulted due to the jaundice of the defendant. The suit itself is for declaration, recovery of possession and mandatory injunction with regard to an immovable property. If opportunity is not given, the revision petitioner would be prejudiced. 6. The learned Counsel for the respondent/plaintiff would oppose the Civil Revision Petition on the main ground that the defendant/revision petitioner allowed gross to grow under his feet and slept at the switch or slept at the wheel and absolutely there is no reason, much less valid reason for condoning such huge delay of 262 days; wherefore no interference with the order passed by the lower Court is warranted. 7. The point for consideration is as to whether the lower Court was justified in not condoning the delay of 262 days on the ground that the petitioner did not establish proper reasons for getting the delay condoned? The Point: 8. I would like to fumigate my mind with the precedent of the Honourable Apex Court in BalwantSingh v. Jagdish Singhreported in(2010) 8 Supreme Court Cases 685. Certain excerpts from it, would run thus: "26. The Point: 8. I would like to fumigate my mind with the precedent of the Honourable Apex Court in BalwantSingh v. Jagdish Singhreported in(2010) 8 Supreme Court Cases 685. Certain excerpts from it, would run thus: "26. The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly. ***** 29. In Ramlal v. RewaCoalfields Ltd., AIR 1962 SC 361 , this Court took the view: (AIR pp. 363-65, paras 7 & 12) “7. In construing Section 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree-holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be light heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the court to condone delay and admit the appeal. This discretion has been deliberately conferred on the court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the court to condone delay and admit the appeal. This discretion has been deliberately conferred on the court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chathappan, ILR (1890) 13 Mad 269: * * * 12. It is, however, necessary to emphasise that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the court by Section 5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismissed on that ground alone. If sufficient cause is shown then the court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration;” ***** 35. The expression “sufficient cause” implies the presence of legal and adequate reasons. The word “sufficient” means adequate enough, as much as may be necessary to answer the purpose intended. It embraces no more than that which provides a plentitude which, when done, suffices to accomplish the purpose intended in the light of existing circumstances and when viewed from the reasonable standard of practical and cautious men. The sufficient cause should be such as it would persuade the court, in exercise of its judicial discretion, to treat the delay as an excusable one. These provisions give the courts enough power and discretion to apply a law in a meaningful manner, while assuring that the purpose of enacting such a law does not stand frustrated. 36. We find it unnecessary to discuss the instances which would fall under either of these classes of cases. The party should show that besides acting bona fide, it had taken all possible steps within its power and control and had approached the court without any unnecessary delay. 36. We find it unnecessary to discuss the instances which would fall under either of these classes of cases. The party should show that besides acting bona fide, it had taken all possible steps within its power and control and had approached the court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. (Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edn., 2005)" 9. A mere running of the eye over the aforesaid precedent of the Honourable Apex Court would unambiguously and unequivocally highlight and spotlight the fact that huge delay cannot be condoned for the sake of asking for it. However, in this case, there is a delay of 262 days for which the petitioner would submit that the delay was not willful and wanton, but due to his ill-health and that no medical certificate in a clinching manner could be produced and only country treatment was taken by him. 10. I am of the considered view that the matter is relating to an immovable property. No doubt, the petitioner should have been diligent in prosecuting the matter. The Court also cannot lose sight of the fact that the persons suffering from jaundice are normally taking country treatment and they would not be able to get any medical certificate in that regard and there is no willful negligence on the part of the petitioner in prosecuting the matter with any ulterior motive. Hence, by taking a lenient view, I would like to set aside the order passed in I.A.No.792 of 2010 by the trial Court, subject to payment of costs of Rs.5,000/- (Rupees Five Thousand Only) by the revision petitioner to the respondent within a period of ten days from the date of receipt of a copy of this order. On such compliance, the consequential order passed in the application filed under Order IX Rule 13 of the Code of Civil Procedure also shall stand set aside and the lower Court is expected to take up the application filed under under Order IX Rule 13 of the Code of Civil Procedure and pass suitable orders. In the event of setting aside the exparte decree, the lower Court shall take the suit on file and dispose it of, within a period of three months thereafter. In the event of setting aside the exparte decree, the lower Court shall take the suit on file and dispose it of, within a period of three months thereafter. Should the revision petitioner fail to comply with the condition stipulated by this Court, this order will not enure to his benefit. The point is answered accordingly. 11. On balance, this Civil Revision Petition is allowed as above. Consequently, the connected Miscellaneous Petition is closed. No costs.